The English courts have held, as I understand it, that if a person could not get legal advice before the interview then the "old rules" applied.

Naturally enough, the efficacy of the changes for the UK was used to justify the changes in NSW, even though there was no intention of providing funding to Legal Aid so a similar service could be provided.

My experience is that if a person is arrested and says they want to speak to a lawyer, the police usually just fling a yellow pages at them and give them a cordless phone.

Since a lawyer is unlikely to come down to a police station unless the person is able to pay for their attendance, it's extremely rare for a person to actually get legal advice before they get interviewed.

The new section says that the new rule will only apply once they have been given the "opportunity" to obtain legal advice.

It will be fascinating to see the way the courts interpret the word "opportunity".

Technically, every arrested person is already afforded the "opportunity" to seek legal advice. If they say they want to speak to their lawyer, or any lawyer, the police will give them that cordless phone.

But I fancy the drafters had something a little more substantial in mind. But what?

The good thing about the drafting is that it means that the issue will be left up to the courts to interpret with very little precedent to be guided by, other than the UK system.

Given the way in which this section flies in the face of centuries of legal protection for the rights of the individual, it is my hope that the court reads "opportunity" very narrowly, perhaps limited to an in-person conference with a solicitor who has been given the chance to obtain a detailed account from you.

Of course, there are still a number of significant problems with that system. People will be giving interviews before the police have had to provide a brief of evidence, before it is clear what charges will be preferred, and before it is clear whether police have any prospect of proving the charges without you opening your fat mouth.

But it's something at least.

The full proposed amendment can be found here along with an invitation to make a submission. If you are so inclined, you have my permission to plagiarize as much of my writing as you like.